Garland makes good on Biden’s promise to stop harassing the press

Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.

Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.

When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.

But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:

The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:

The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.

Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.

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Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.

There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.

Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.

How minority rule is turning the U.S. into an undemocratic country

Photo (cc) 2014 by the National Museum of American History

This essay was first published in the Media Nation member newsletter. To become a member for $5 a month, please click here.

Like many of us, I worry about the state of our democracy. I write about it from time to time, but what concerns me especially is that it’s almost impossible to see any way out of our dilemma. That’s because we need systemic reform in order to move toward democracy. Not only is it in the interest of Republicans to oppose that reform, but there’s also no way of overcoming their opposition.

Obviously a lot of attention has been focused on Democratic Sen. Joe Manchin’s opposition to getting rid of the filibuster, which means that President Joe Biden won’t be able to pass any of his non-budget priorities through a simple majority. But we all know the problem goes deeper than that, because the Constitution is heavily tilted toward the small-population states, which are overwhelmingly Republican.

At the presidential level, we need to get rid of the Electoral College, a vestige of slavery that resulted in the elections of George W. Bush in 2000 and Donald Trump in 2016 even though they lost the popular vote. Yes, the Electoral College has always been with us. But before Bush, the last time a candidate was elected president despite losing the popular vote was in 1888. Because of shifting demographics, such outcomes have become increasingly likely.

Nor is the problem solely at the presidential level. The 50 Republican senators represent just 43.5% of the electorate, according to calculations by the Daily Kos, whereas the 50 Democratic senators represent 56.5%. That’s an enormous gap, yet between the filibuster’s requirement of 60 votes to move forward on anything and the small-state advantage, Chuck Schumer might as well hand his gavel over to Mitch McConnell.

The House is at least theoretically democratic since districts are drawn on the basis of population. But partisan gerrymandering has resulted in Republicans having more seats to which they should be entitled. That will certainly prove to be a factor in the midterm elections, when the Republicans will in all likelihood regain their majority.

And I haven’t even mentioned Republican efforts across the country to pass voter-suppression laws that would disproportionately affect people of color.

This state of affairs would be bad enough if Republicans were committed to our democratic system. But we can see that they’re not, and their willingness to repeat the Big Lie that Trump won re-election last fall has become a loyalty test within the party.

We can all think of ways to solve these problems, but even to write about them seems like an exercise in futility. The Republicans would block any changes that would diminish their power. And we will continue to move deeper into minority rule.

Yes, Trump officials spied on reporters. But every president abuses the press.

Photo (cc) 2018 by Adam Fagen

Previously published at GBH News.

The revelation last week that the Trump Justice Department had spied on three Washington Post reporters’ phone records barely caused a stir. But as much as I’d like to think that such behavior would shock the conscience, I can understand why the story failed to resonate. It was, after all, the sort of thing that all administrations do. To invoke a pandemic cliché, it was a sign that nature is healing.

Not to sound cynical and world-weary. We should be outraged. We should be shouting from the rooftops. When the government uses its awesome legal powers to stymie journalists who are trying to do their jobs, we lose our ability to hold the powerful to account. The incident would stand as yet another example of former President Donald Trump’s authoritarian tendencies — except that, at least in this instance, his actions were right in line with those of his predecessors.

As Jon Allsop of the Columbia Journalism Review wrote, “it’s not ‘bothsidesism’ to call out loathsome things that both sides are actually doing.”

So what happened? Devlin Barrett of the Post reported last Friday night that the Justice Department informed current Post journalists Ellen Nakashima and Greg Miller and former Post journalist Adam Entous that their phone records had been obtained, and their email logs had been unsuccessfully sought, for mid-April through July of 2017. The phone records showed whom the reporters were in contact with but did not reveal the contents of the calls.

There are a few details that make this particular exercise of executive power especially disturbing. The three reporters were delving into the 2016 Trump campaign’s ties to Russia during the period in question. The records were sought in 2020, when the attorney general was Trump enabler William Barr. Thus the incident could be seen as part of Trump’s long-standing obsession with covering up his ties to Russian interests.

In other respects, though, it was business as usual.

I wrote a commentary in 2012 for HuffPost headlined “Obama’s War on Journalism.” It’s a matter of public record that Barack Obama, during his eight-year presidency, showed a shocking lack of regard for the role of the press in a free society. Obama and his attorney general, Eric Holder, were obsessed with identifying government officials who had leaked sensitive or embarrassing information to the press. One reporter, James Risen of The New York Times, was threatened with jail for several years.

The Obama years were extreme but not exceptional. Previously, then-Times reporter Judith Miller actually did a stint behind bars for refusing to cooperate with an independent counsel’s investigation into possible wrongdoing by officials in George W. Bush’s administration: Someone had publicly identified a CIA operative in apparent retaliation for an op-ed (oops, guest essay) her husband had written for the Times that accused officials of ignoring evidence contradicting their claim that Iraq was trying to build nuclear weapons.

At least in that case, Bush had nothing to do with the investigation that landed Miller in jail. But Bush hardly had clean hands. After the Times reported that Bush’s National Security Agency was illegally spying on Americans, Bush denounced the paper’s work as “a shameful act,” and people around him urged that the Times be prosecuted under the World War I-era Espionage Act. The Times won a Pulitzer Prize for its revelations.

Of course, Richard Nixon’s attempts to retaliate against the press were legendary, ranging from including hostile reporters on his “enemies list” to threatening to strip The Washington Post of its television stations.

A central dilemma in all of these cases is that though the First Amendment offers robust protections for anything that the media might publish or broadcast, it is relatively silent on protections for reporting. In Branzburg v. Hayes, the 1972 decision that reporters do not have a constitutional right to protect their anonymous sources, Justice Byron White wrote that “news gathering is not without its First Amendment protections.” As a general rule, though, reporters have no more protections in going about their jobs than do ordinary members of the public.

Will the situation improve under President Biden? Not likely. As the CJR’s Allsop pointed out, the Biden Justice Department didn’t just inform the three Post journalists that they had been spied upon — it went out of its way to endorse the practice. Marc Raimondi, a spokesman for the current Justice Department, was quoted in the Post’s account as saying that the department “follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information.”

Raimondi added — shades of Obama and Holder — that “the targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”

With public approval for the media near record lows, and with the courts unlikely to carve out any new protections for journalism, it’s not realistic to think that things are going to change for the better any time soon.

At the very least, though, the president could issue guidance to his Justice Department, backed up with a strong public statement, that the government will not spy on, subpoena or prosecute journalists except under the most dire life-and-death circumstances.

Biden appears to be intent on breaking with his predecessors in many ways, especially regarding the size and scope of government. Respecting the role of the press would be one way that he could ensure greater scrutiny of that government on behalf of all of us.

God help me, but I’m writing about Elizabeth Warren and the likability factor

Elizabeth Warren. Photo (cc) 2012 by Edward Kimmel.

A few very brief thoughts about Elizabeth Warren and whether she’s “likable enough” (to recycle an unfortunate old quote from Barack Obama) to be elected president — the subject of a front-page story in today’s Boston Globe as well as multiple other outlets.

First, yes, of course there’s an element of sexism to it, as there was when the same questions were raised over and over about Hillary Clinton. But let’s not get carried away — it’s not just sexism. Republicans used the likability factor like a sledgehammer against Al Gore and John Kerry, and it was effective. Their opponent, George W. Bush, was regularly described as someone you’d rather have a beer with, which always struck me as pretty odd given that Bush was an alcoholic who had given up drinking.

Second, in Warren’s case, “likability” is shorthand for something real — a lack of political adroitness despite her substantive strengths and despite being, as best as I can determine, genuinely likable. The whole Native American thing is ludicrous, and it seems as though she should have been able to put it behind her years ago when Scott Brown and the Boston Herald first tried to make an issue of it. Yet it’s still here, and it makes you think she should have handled it differently. Certainly the DNA test didn’t help.

Third, there’s something to the idea that she let her moment slip away. The news and political cycles are so accelerated now that 2016 may have represented her best chance. That has nothing to do with likability. The fact that Beto O’Rourke may be a serious candidate seems silly unless you view it in that context.

Finally, Warren’s likability is a phony issue because it’s about the pundits, not the voters. If she wins the nomination and is ultimately elected president, there’s the answer to your question: she’s likable enough.

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Remembering John McCain: Barreling through S.C. on the Straight Talk Express

John McCain in Portsmouth, New Hampshire. Photo © 2007 by River Bissonnette.

Previously published at WGBHNews.org.

We lost a great American on Saturday. Sen. John McCain was a complicated man, but his integrity, courage, and fundamental decency were beyond reproach. In February 2000, I covered the South Carolina showdown between McCain and George W. Bush for The Boston Phoenix. Bush had just lost the New Hampshire primary to McCain and was hanging on for dear life. Bush defeated McCain in South Carolina and went on to win the presidency. I think I had more fun reporting this story than just about any other I can remember. Today, courtesy of the Northeastern University Archives, WGBH News republishes my story in full.

GREENVILLE, S.C. — The Straight Talk Express — a bus that’s expanded into a three-vehicle caravan since John McCain’s unexpectedly large victory in New Hampshire — has just pulled up in front of City Hall. A crowd of people has gathered, waiting expectantly for the candidate. Among them is Geno Church, a city employee who’s holding his 5-year-old daughter, MacKenzie, so she can get a closer look. She points to a huge sign on one of the buses that says “McCain” and asks, “Daddy, why does that sign say ‘Media’?”

Out of the mouths of babes and all that.

The McCain campaign is many things. An insurgent effort by an underfunded challenger against an establishment candidate — George W. Bush — who’s been anointed with more than $65 million in contributions. A crusade to clean up a hopelessly corrupt political system. A book tour to promote “Faith of My Fathers,” which, McCain jokingly but carefully notes at every stop, was published by Random House and is available from Amazon.com for $24.95. (It’s working: “Faith of My Fathers” was Amazon’s 36th hottest-selling book as of Tuesday.)

Above all else, though, the McCain campaign is a media moment. The press has fallen hard for McCain, harder than it fell for Bill Clinton in 1992, harder than it fell for Gary Hart in 1984 or George McGovern in 1972. Aboard the Straight Talk Express, it’s clear that the reporters believe they’re in the midst of something historic — something akin, perhaps, to the 1960 campaign of John F. Kennedy, the last time a war hero with a sense of humor and a proclivity for mixing it up with the press ran for president.

“It’s kind of a running dialogue that goes on on the McCain bus. The extraordinary thing about the McCain campaign is that everything is on the record. I’ve never seen anything like it,” says veteran Boston Globe reporter Curtis Wilkie. Wilkie — one of the characters who pops up in Timothy Crouse’s classic on the 1972 campaign, “The Boys on the Bus” — calls McCain’s dealings with the media something of a “throwback” to the days when “you didn’t have nearly as many press people running around, and in general the candidates were more accessible.” And for the press, there is no higher value than accessibility.

It’s not that the press is consciously in the tank for McCain, or that he escapes all critical scrutiny. The beat reporters say they’re careful not to let their easy access to the candidate twist their coverage. But the cumulative effect of McCain’s blunt candor, his nonstop, on-the-record chatter, his sense of brio and his insouciance, has been to create an aura of goodwill in which the candidate — unlike perhaps any other national politician — automatically receives the benefit of the doubt.

Collectively — with, of course, certain exceptions (Time magazine broke from the pack last week with excellent pieces on McCain’s ultraconservative ideology and lack of a substantive agenda beyond campaign-finance reform) — the media have concluded that McCain is capable of transcending his unremarkable career in the Senate, his run-of-the-mill influence-peddling, and his doctrinaire conservatism to reform a political system that has grown hopelessly corrupt and out of touch with average Americans. Are they right? Continue reading “Remembering John McCain: Barreling through S.C. on the Straight Talk Express”

Chasing McCain and Bush during the 2000 S.C. primary

John McCain in Kyiv, Ukraine, in 2013. Photo via Wikimedia Commons.

Wednesday’s sad news that Sen. John McCain has been diagnosed with brain cancer called to mind this story I wrote for The Boston Phoenix in February 2000 during the crucial Republican primary showdown between McCain and George W. Bush. Bush had just lost the New Hampshire primary to McCain and was hanging on for dear life. As we know, Bush defeated McCain in South Carolina and went on to win the presidency.

I think I had more fun reporting this story than just about any other I can remember. McCain wasn’t quite as accessible to the media (at least not to all the media) as advertised; but as you’ll see, I managed to wedge myself between him and his bus and ask him a question he didn’t want to answer. I have rarely agreed with McCain politically, but his service and courage transcend political differences. He is a great American hero, and my thoughts go out to him at this difficult time.

Continue reading “Chasing McCain and Bush during the 2000 S.C. primary”

No, the entire country has not gone Trump-crazy

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Police photo of Trump campaign manager Corey Lewandowski grabbing reporter Michelle Fields’s arm.

At a time when it seems like the entire political world has gone mad, I offer some welcome perspective this morning from E.J. Dionne:

  • President Obama’s approval rate is currently 53 percent. At a similar point in George W. Bush’s presidency, his standing had fallen to 32 percent.
  • Donald Trump’s favorability rating is a minuscule 33 percent, and just 34 percent among independents. The vast majority of his support comes from Republicans, 64 percent of whom view him favorably.

Dionne writes:

Trumpism is not sweeping the nation. It has a strong foothold only in the Republican Party, and not even all of it….

We are allowing a wildly and destructively inaccurate portrait of us as a people to dominate our imaginations and debase our thinking.

We’ve got a long way to go between now and November. As Dionne notes, the successes of Trump and Bernie Sanders “reveal the discontent of Americans who have been left out in our return to prosperity.” (Needless to say, even though both Trump and Sanders have embraced economic populism, only Sanders has managed to do so without couching it in the language of racism and violence.)

But it’s wrong to think that the entire country has gone nuts. Just part of it. And I agree with Dionne that the media could do a far better job of making that clear.

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Barry Crimmins gets his overdue due in ‘Call Me Lucky’

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Barry Crimmins in “Call Me Lucky”

What can you say about a film that stars someone you know and admire telling the world about being raped repeatedly — and nearly killed — when he was 3 years old?

Since we’re talking about Barry Crimmins, I would say that you should see it as soon as you can.

“Call Me Lucky,” directed by Bobcat Goldthwait, had its New England premiere on Saturday at the Somerville Theatre as part of the Independent Film Festival. As befits the subject, the documentary almost feels like two films. In the first part we meet Crimmins the caustic left-wing performer, who almost single-handedly created Boston’s comedy scene in the 1980s. In the second part, Crimmins comes to terms with his past as a survivor of childhood sexual abuse.

It was during this second phase that I got to know Barry. He revealed what had happened to him in the early 1990s in a harrowing front-page essay for The Boston Phoenix headlined “Baby Rape.” (I had a small role in copy-editing it, but most of the heavy lifting was handled by the late Caroline Knapp — and, of course, by Barry himself.) Later, Barry was a valuable resource as I was doing my own reporting about child sexual abuse. This was around the time Barry was engaged in a very public campaign against AOL and the pedophiles it allowed to run rampant in its chatrooms, a centerpiece of “Call Me Lucky.” Even though I can’t pretend to be a close friend of Barry’s, I’ve always been struck by his fundamental kindness and decency — a quality that comes through repeatedly in the film. (I was among many people Goldthwait interviewed, but I didn’t make the cut.)

Barry was a regular in the Phoenix, writing a satirical year-in-review piece every Christmas as well as other humor pieces. This 2003 takedown of Dennis Miller works as well today as it did 12 years ago. I still laugh when I recall his referring to George W. Bush as “the court-appointed president.” Barry was a big part of the Phoenix, and vice-versa. So I was pleased to see him pay tribute to the late managing editor Clif Garboden in the credits, saying he learned to write through Clif’s editing. Fittingly, Clif’s own classic apex as an angry humorist begins with a quote from Barry.

Despite its somber subject matter, there are plenty of laughs in “Call Me Lucky” — not just from Crimmins, but from many other comedians, including Jimmy Tingle, Margaret Cho and Lenny Clarke. The biggest laughs, though, are reserved for Ronald Reagan, who is seen attempting to explain what he knew and didn’t know about the Iran-Contra scandal. The man was a comic genius.

Barry was — and is — a comic genius as well. Because I wasn’t taking notes, I’ll rely on the press release for one of my favorite bits from the movie. A protégé of Barry’s, Bill Hicks, recalls that a member of the audience once yelled, “If you don’t love America why don’t you get out?” Crimmins’ response: “Because I don’t want to be a victim of its foreign policy!”

Also posted at WGBHNews.org.

Iraq, Saddam Hussein and the rise of the Islamic State

The Washington Post today fronts a horrifying story by Liz Sly showing how the remnants of the Saddam Hussein regime are pulling the strings of the Islamic State. We will be paying for the hubris of the Bush-Cheney-Rumsfeld era for many years to come.

As Faulkner put it, “The past is never dead. It’s not even past.”

NEFAC honors James Risen, a free-press hero

James Risen
James Risen

James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.

On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented  with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”

Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.

My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:

There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.

Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.

Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.

The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.

More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.